The Judicial Selection Committee has not met for more than a year, and during this period, various positions held by judges have been vacated.
A letter from Justice Minister Yariv Levin harshly attacking Attorney-General Gali Baharav Miara was recently published in the media. He claimed that her reference to his refusing to convene the Judicial Selection Committee, left him – as he put it – without legal representation in these proceedings.
The Judicial Selection Committee has not met for more than a year, and during this period, various positions held by judges have been vacated. This has resulted in an even greater burden on the court system, which already faced a heavy caseload relative to the European average. This load, of course, causes delays in court proceedings. Yet despite this situation, the justice minister is refusing to convene the Judicial Selection Committee which would allow new judges to be appointed and vacancies to be filled.
Judges and justices in Israel are appointed by a Judicial Selection Committee, a nine-member committee made up of two government ministers, two members of Knesset, three Supreme Court justices, and two representatives of the Israel Bar Association. Later this month, the High Court is scheduled to hear a petition filed by the Movement for Quality Government in Israel, Yesh Atid, and a number of citizens against the decision of the justice minister not to convene the Judicial Selection Committee.
The letter – and the attorney general’s reply – attracted attention largely because of the minister’s attack on the attorney general. I would like instead to focus on what this letter reveals about the minister’s basis for his decision not to convene the Selection Committee.
His argument is that the power to convene the committee is a “discretionary power.”
Levin's perspective: Israelis who need the services of the courts can wait
According to reports, Levin is waiting until the government is able to change the composition of the Committee, as part of its proposed judicial overhaul. It would seem that from the perspective of the justice minister, Israeli inhabitants who need the services of the courts can wait.
At the heart of the case in the petitions against the justice minister’s decision is the interpretation of section 7(a) of the Courts Law (1984), which states: “If the minister of justice sees that a judge needs to be appointed, he will give notice of this in Reshumot [Israel’s gazette of record] and will convene the Committee.”
According to the petitioners, the minister’s power under the terms of this section is mainly a “mandatory power.” In other words, the petitioners argue, based on the letter of the law and its purpose, that if there are vacant positions to be filled, the minister must convene the committee.
The minister’s letter indicates that he thinks differently: In his opinion, this is a “discretionary power.”
The justice minister has many powers regarding the administration of the courts: He is the chairman of the Judicial Selection Committee and responsible for such issues as creating new courts, promulgating regulations, and appointing the director of the court system (with the consent of the president of the Supreme Court). On the face of it, one could argue that given the minister’s broad responsibilities in administrative fields, it is logical that he should also be able to apply his personal judgment regarding when it is necessary to appoint judges, and when the Judicial Selection Committee needs to be convened.
However, as the petitioners correctly argue, the text of the law leaves no room for individual judgment to be applied.
In addition to what is claimed in the petitions, it is also important to note that the Courts Law clearly states when judges should be appointed. There are provisions in the law detailing how the number of court judges should be determined. For example, the law states that the Supreme Court should have “the number [of justices] decided by the Knesset.” Regarding the district and magistrate courts, the law states that the justice minister is to set the number of justices via a notice in Reshumot.
Importantly, the question of whether “a judge needs to be appointed” is not a subjective question, subject to the minister’s own judgment. According to the law, the number of judges is set by a Knesset decision (regarding the Supreme Court) or by a separate decision by the justice minister (regarding the district and magistrate courts). The minister’s authority to decide whether or not to convene the Judicial Selection Committee is restricted by the law’s requirement that the number of judges needed to serve in the court system should be published in advance. For this reason as well, if positions become vacant, then the minister of justice must convene the Committee.
The justice minister’s decision is therefore not in alignment with either the letter of the law or its purpose. Furthermore, this decision reflects an attitude that sees Israelis who need the services of the court system as pawns in a political game, rather than people with basic rights to whom the minister is obligated as a public official.
First published in the Jerusalem Post.